Turner v. Shepherd et al
Filing
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ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 10/11/2011 ORDERING that pltf's 12 motion for order to show cause is partially GRANTED; pltf's 14 motion for review ruling and dispositive orders is partially GRANTED; pltf's 15 motion for confirmation of receipt of documents is GRANTED; and RECOMMENDING that pltf's 11 motion for contempt be denied. Referred to Judge Morrison C. England, Jr.; Objections due w/in 14 days. (Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ANTHONY R. TURNER,
Plaintiff,
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No. 2:11-cv-0451 MCE JFM (PC)
vs.
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DIANE SHEPPERD, et al.,
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ORDER AND
Defendants.
FINDINGS & RECOMMENDATIONS
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Plaintiff, a state prisoner proceeding pro se, filed a complaint on February 17,
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2011 seeking relief pursuant to 42 U.S.C. § 1983. The complaint was screened on October 4,
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2011 and dismissed with leave to amend.
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Presently pending before the court are plaintiff’s (1) July 15, 2011 motion for an
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order of contempt; (2) July 25, 2011 motion for order to show cause; (3) August 3, 2011 motion
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for review ruling and dispositive orders; and (4) September 6, 2011 motion for confirmation of
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receipts. Upon review of the motions, THE COURT FINDS AS FOLLOWS:
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1.
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Motion for Contempt
Plaintiff’s July 15, 2011 motion seeks injunctive relief and a finding of contempt
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against staff who are non-defendants and employed at California State Prison – Corcoran (“CSP-
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Corcoran”), where plaintiff is presently housed. Plaintiff alleges that as a result of the initiation
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of the instant lawsuit, staff at CSP-Corcoran have conspired with defendant Diane Shepherd,
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who is an employee at Deuel Vocational Institute, to deny plaintiff his due process rights and
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access to the courts by placing him in administrative segregation and confiscating his legal
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materials.
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The basic function of injunctive relief is to preserve the status quo ante litem
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pending a determination of the action on the merits. Los Angeles Memorial Coliseum Com'n v.
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National Football League, 634 F.2d 1197, 1200 (9th Cir. 1980). A party seeking injunctive relief
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must fulfill one of two standards, the “traditional” or the “alternative.” Cassim v. Bowen, 824
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F.2d 791, 795 (9th Cir.1987).
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Under the traditional standard, a court may issue preliminary relief if it finds that
(1) the moving party will suffer irreparable injury if the relief is denied; (2) the
moving party will probably prevail on the merits; (3) the balance of potential
harm favors the moving party; and (4) the public interest favors granting relief....
Under the alternative standard, the moving party may meet its burden by
demonstrating either: (1) a combination of probable success and the possibility
of irreparable injury; or (2) that serious questions are raised and the balance of
hardships tips sharply in its favor.
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Id. (citations omitted). Federal Rule of Civil Procedure 65(d)(2) outlines the persons against
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whom an injunction can be issued. The list includes the parties, the party’s officers, agents,
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servants, employees, and attorneys, and other persons who are in active concert or participation
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with anyone described above.
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Here, plaintiff asks the court to enjoin non-defendants for actions taken allegedly
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in concert with Diane Shepherd and unrelated to the claims of the complaint.1 Plaintiff’s
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allegations do not fulfill either the traditional test or the alternative test for injunctive relief.
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Plaintiff has made no attempt to address either the likelihood of success on the merits of her
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complaint, the claimed irreparable injury, or any of the other necessary elements of such a
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motion. Other than his conclusory and unsupported allegations, plaintiff has made no showing
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The gravaman of plaintiff’s complaint is that Diane Shepherd, a case records analyst
at Deuel Vocational Institute, refused to provide plaintiff copies of his central prison file unless
plaintiff paid $422.52 in copying fees.
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that any of these persons are acting in concert with Shepherd, who has yet to be served in this
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case. Further, plaintiff’s allegations concern the actions of non-defendants. The court should
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not intentionally or unwittingly predetermine a claim plaintiff may have against a non-party by
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considering plaintiff’s requested motion. There is similarly no reason for the court to find the
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non-defendants in contempt. Therefore, this motion should be denied.
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2.
Motion for Order to Show Cause
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In the July 25, 2011 motion for order to show cause, plaintiff asks this court to
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review, screen and serve his complaint on defendants. The court screened plaintiff’s complaint
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by separate order on October 11, 2011, dismissing it with leave to amend. At this procedural
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posture, then, service is not appropriate. Accordingly, this motion will be partially granted.
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Motion for Review Ruling and Dispositive Orders
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In the August 3, 2011 motion for review ruling and dispositive orders, plaintiff
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again requests that the court review, screen and serve his complaint on defendants. For the
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aforementioned reasons, this motion will be partially granted.
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Motion for Confirmation of Receipt
Finally, in the September 6, 2011 motion for confirmation of receipts, plaintiff
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seeks confirmation of an opposition he filed to the June 27, 2011 findings and recommendations.
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The docket does not reflect the filing of an opposition. The court notes, however, that the June
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27, 2011 findings and recommendations were vacated by order dated October 11, 2011.
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Accordingly, IT IS HEREBY ORDERED that:
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1. Plaintiff’s July 25, 2011 motion for order to show cause is partially granted;
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2. Plaintiff’s August 3, 2011 motion for review ruling and dispositive orders is
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partially granted;
3. Plaintiff’s September 6, 2011 motion for confirmation of receipt of documents
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is granted; and
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/////
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IT IS HEREBY RECOMMENDED that plaintiff’s July 15, 2011 motion for
contempt be denied.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen
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days after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
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objections shall be filed and served within fourteen days after service of the objections. The
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parties are advised that failure to file objections within the specified time may waive the right to
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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: October 11, 2011.
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